A full bench of Justices Anil R. Dave, Kurian Joseph and R. Banumathi held that "to invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time.
Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out.
CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel.
CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case." Court added.
Allowing the appeal and setting aside the convictions of the accused under Section 302/34 IPC the Court further held that:
With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant.
Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with.
The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B.
Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.
Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution.
Relevance of electronic evidence
The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, noncollection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference.
Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.
Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.
The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage.
The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence–CCTV footage ought to have produced the same.
In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.
In the present case, the courts below have not properly appreciated the evidence and the gap in the chain of circumstances sought to be established by the prosecution. The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports.
Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside", the Court Said.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 142 OF 2015
(Arising out of S.L.P.(Crl.) No. 1156/2013)
TOMASO BRUNO Vs STATE OF U.P.
Date;January 20, 2015
Leave granted.
2.
This appeal is directed against the judgment dated
4.10.2012 passed by Allahabad High Court in Criminal Appeal
No.5043 of 2011 in which the High Court confirmed the
conviction of the appellants under Section 302 read with Section
34 IPC and the sentence of life imprisonment and fine of Rs.
25,000/- imposed on each of them.
3.
Briefly stated, case of the prosecution is that three
Italian nationals namely Tomaso Bruno (Accused No.1), Elisa
Betta Bon Compagni (Accused No. 2) and Francesco Montis
(Deceased) came as tourists to India from London and reached
Page 1
2
Mumbai on 28.12.2009. After visiting several places of interest
together, these persons arrived at Varanasi on 31.1.2010 and
they checked in at Hotel Buddha, Ram Katora, Varanasi. The
hotel management, after checking all the relevant identity
proofs, allotted Room No. 459 in the hotel to them at about 5.00
p.m. For two days the accused and deceased went around the
city. On 3.2.2010, the deceased complained of a mild headache
on account of which, they went out late and returned early and
thereafter, stayed in the room for the entire evening as they had
planned to see the ‘Subahe Banaras’ the next morning.
On
4.2.2010 at about 8.00 a.m. A-2 informed Ram Singh (PW-1), the
Manager of hotel Buddha, Varanasi, that the condition of the
deceased was not fine, after which the accused, PW-1 and others
took the deceased to S.S.P.G. Hospital, Varanasi for treatment,
where the doctors declared the ailing tourist as ‘brought dead’.
4.
Ram Singh (PW-1) filed a complaint regarding death of
deceased Francesco Montis in the police station.
Additionally,
Awadhesh Kumar Choubey, Home Guard also submitted a memo
informing death of Francesco Montis which was transmitted to
P.S. Chetganj, Varanasi.
An inquest was conducted by Sagir
Ahmad-SI (PW-12) regarding death of deceased Francesco Montis
and Ex. P12 is the inquest report. After inquest, the body was
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3
handed over for conducting post mortem. Dr. R.K. Singh (PW-10)
conducted autopsy and issued Ex. Ka-10, opining that the cause
of death was asphyxia due to strangulation. In pursuance of
order of District Magistrate, by an order of Chief Medical Officer,
a second post mortem was conducted on 6.02.2010 by the panel
of doctors headed by Dr. A.K. Pradhan (PW-11) which is marked
as Ex. Ka-11 wherein the doctors reaffirmed the cause of death of
deceased Francesco Montis.
5.
On the basis of the postmortem report and other
materials, First Information Report in Case No. 34 of 2010 was
registered on 5.2.2010.
PW-12-Sagir Ahmad (SI) had taken up
the investigation and proceeded to the place of occurrence i.e.
hotel Buddha.
During the spot-investigation, PW-12 collected
bed-sheet, pillow, a towel and other material objects. The bed-
sheet contained marks of urine and stools and a black brown
stain of the size of lip was found on the pillow cover. PW-12 also
collected other articles from the room and also prepared Ex. P18-
site plan at the place of occurrence.
On 5.2.2010, further
investigation was taken over by Shri Dharambir
Singh (PW-13)
who recorded the statement of the waiters in the hotel and also
recorded the statement of the accused persons. The accused
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4
stated that on 4.2.2010 morning they went out at 4.00 a.m. for
‘Subhae Banaras’, but deceased was not well, so he was left
sleeping in the room and when they came back they found
Francesco in a serious condition.
On the basis of material
collected during investigation, PW-13 arrested the accused
persons after appraising them with the grounds of arrest. After
completion of investigation, chargesheet under Section 302 read
with Section 34 IPC was filed by the police in the court against
accused Nos. 1 and 2.
6.
To substantiate the charges against the accused,
prosecution has examined thirteen witnesses and exhibited
material documents and objects. The accused were questioned
under Section 313 Cr.P.C. about the incriminating evidence and
the accused denied all of them. The accused reiterated whatever
was earlier stated before I.O., that on the fateful night of
3.2.2010, they ordered two plates of fried rice and all three of
them dined together. Next day morning they went out at 4.00
a.m. for ‘Subhae Banaras’, but deceased was not well and so he
was left sleeping in the room. When they returned to the hotel at
8.00 a.m., Francesco Montis was lying on the bed in an
unconscious condition. The second accused stated that she had
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5
informed the hotel manager that Francesco Montis was very
serious and all the staff, PW-1 manager and accused persons
took Montis to the hospital where he was declared ‘brought
dead’. The second accused clarified that the marks of lip on the
cover were not hers.
7.
Upon consideration of evidence, trial court convicted
the accused persons under Section 302 read with Section 34 IPC
and sentenced them to undergo life imprisonment, imposed a
fine of Rs.25,000/- each with a default clause. Aggrieved by the
same, the appellants preferred appeal before the High Court
wherein by the impugned judgment, High Court confirmed the
conviction and the sentence. Assailing the verdict of conviction
and sentence of life imprisonment, the appellants have preferred
this appeal by way of special leave.
8.
Mr. Harin P. Raval, learned senior counsel appearing for
the appellants contended that all the circumstances relied upon
by the prosecution ought to be firmly established by evidence
and the circumstances must be of such nature as to form a
complete chain pointing to the guilt of the accused and the
courts below ignored the conditions that are required to be
satisfied in a case based on circumstantial evidence.
Learned
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6
counsel contended that non-production of CCTV footage being an
important piece of evidence casts a serious doubt in the
prosecution case and non-production of such best possible
evidence is fatal to the prosecution case.
It was further
submitted that the courts below ought to have noticed the faulty
investigation and non-collection of CCTV footage, sim details and
lapses in the investigation. It was urged that the opinion of the
doctors
that
the
cause
of
death
was
asphyxia
due
to
strangulation is not supported by materials and this vital aspect
has been ignored by the courts below.
9.
Mr. Irshad Ahmad, learned Additional Advocate General
appearing for the respondent-State submitted that without
evidence of their complicity in the crime, there is no reason as to
why PW-1 Ram Singh, the hotel manager or the police personnel
would implicate two foreign nationals who came to India as
tourists. It was further contended that inside the hotel room, the
appellants were admittedly with the deceased and the appellants
failed to account for the manner and time of death of the
deceased inside the room. It was held that the defence set up
by the accused persons that they had gone on sight seeing and
‘Subahe Banaras’ at the wee hours on 4.2.2010 and returned to
hotel room at about 8.00 A.M. cannot be subscribed or relied
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7
upon.
The learned counsel vehemently contended that the
medical evidence, inquest report and the presence of stool, urine
stain on the bed sheet and black brown discharge from the
mouth narrated in the inquest
and brown black lip mark on
pillow cover clearly lead to the inference of
the guilt
of
the
accused persons and upon appreciation of circumstances and the
evidence adduced by the prosecution, courts below rightly
convicted
the appellants and the concurrent findings recorded
by the courts below cannot be interfered with.
10.
We have carefully considered the evidence, materials
on record and the rival contentions and gone through the
judgments of the courts below.
11.
Admittedly,
there
is
no
eye-witness
and
the
prosecution case is based on circumstantial evidence.
The
circumstances as can be culled out from the judgment of the
courts below relied upon by the prosecution and accepted by the
courts below to convict the appellants are:-
(i) from the fateful night of 3.2.2010 till the morning of
4.2.2010, when the incident is alleged to have taken place
inside the privacy of the hotel room and in such
circumstances the accused had all the opportunity to
commit the offence;
(ii) the accused had no plausible explanation to offer as to
the injuries on the deceased and the death of
the
deceased;
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8
(iii) the accused failed to prove the defence plea of alibi
that in the wee hours of 4.2.2010, they had gone outside
the hotel for sight seeing and after returning to the hotel
room, they saw the deceased unconscious;
(iv) the intimacy developed between
the accused
alienated them from the deceased and as a love triangle
was formed and prompted by this motive, the accused
eliminated Francesco Montis on the fateful day; and
(v) medical evidence supports prosecution version that
the death was homicidal and deceased was strangulated
to death.
12.
Upon consideration of evidence adduced by the
prosecution on the above circumstances and after referring to
various judgments on circumstantial evidence, the trial court as
affirmed by the High Court, found that all the circumstances
suggested by the prosecution against the appellants are proved
beyond reasonable doubt and form a complete chain pointing to
the guilt of the accused beyond any reasonable doubt and on
those findings, convicted the appellants for the charge under
Section 302 IPC read with Section 34 IPC.
13.
In every case based upon circumstantial evidence, in
this case as well, the question that needs to be determined is
whether the circumstances relied upon by the prosecution are
proved by reliable and cogent evidence and whether all the links
in the chain of circumstance are complete so as to rule out the
possibility of innocence of the accused.
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9
14.
There is no doubt that conviction can be based solely
on the circumstantial evidence. But it should be tested on the
touchstone of the law relating to circumstantial evidence.
Court
in
C. Chenga
Reddy
This
& Ors. vs. State of A.P.,
(1996) 10 SCC 193, para (21) held as under :-
“21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally
inconsistent with his innocence. In the present case the
courts below have overlooked these settled principles and
allowed suspicion to take the place of proof besides
relying upon some inadmissible evidence.”
15.
After
referring
to
a
catena
of
cases
based
on
circumstantial evidence in Shivu and Anr. vs. Registrar General,
High Court of Karnataka & Anr., (2007)
4 SCC 713, this Court
held as under:-
“12. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the
guilt of any other person. {See Hukam Singh v. State of
Rajasthan, (1977) 2 SCC 99; Eradu v. State of Hyderabad
(AIR 1956 SC 316), Earabhadrappa v. State of Karnataka
(1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985 (Supp.)
SCC 79), Balwinder Singh v. State of Punjab (1987) 1 SCC
16 and Ashok Kumar Chatterjee v. State of M.P (1989
Supp. (1) SCC 560) The circumstances from which an
inference as to the guilt of the accused is drawn have to
be proved beyond reasonable doubt and have to be shown
Page 9
10
to be closely connected with the principal fact sought to
be inferred from those circumstances. In Bhagat Ram v.
State of Punjab, AIR 1954 SC 621, it was laid down that
where the case depends upon the conclusion drawn from
circumstances, the cumulative effect of the circumstances
must be such as to negative the innocence of the accused
and bring home the offences beyond any reasonable
doubt.”
16.
In Padala Veera Reddy v. State of A.P. and Ors., 1989
Supp. (2) SCC 706, it was laid down that in a case of
circumstantial evidence such evidence must satisfy the following
test:-
“(1)
(2)
(3)
(4)
17.
the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the
crime was committed by the accused and none else;
and
the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence. (See
Gambhir v. State of Maharashtra (1982) 2 SCC
351).”
Adverting to the case in hand, it emerges from the
evidence that the accused and deceased reached Varanasi on
31.1.2010 and checked in at hotel Buddha.
On 1.2.2010 and
2.2.2010, the tourists went around to explore the city and visited
Page 10
11
important places. On 3.2.2010, since the deceased complained
of mild headache, the accused and the deceased went out late at
11.00 A.M. and returned back to the hotel at 2.30 P.M. as they
planned to see famous ‘Subahe Bararas’ the next morning. In
his evidence, PW-2 Ajit Kumar stated that on the night of
3.2.2010, on order from the tourists, PW-2 served two plates of
vegetable fried rice in the room. PW-2 further stated that after
serving two plates of vegetable fried rice, while he was getting
out of the room, second appellant Elisa Betta Bon asked him ‘not
to disturb till next morning’ and thereafter the second appellant
bolted the door from inside and thereafter no person ever visited
their room. The trial court and the High Court have taken this as
one of the important links of evidence to conclude that from the
night of 3.2.2010, till next day morning 8.00 A.M., the accused-
appellants remained inside the hotel room. Be it noted, this vital
evidence that the second appellant asked PW-2 Ajit Kumar-
Waiter, ‘not to disturb them till next day morning’ was not stated
by PW-2 before the Investigating Officer, when the Investigating
Officer recorded PW-2’s statement under Section 161 Cr.P.C.,
which in our view, seriously affects the credibility of PW-2. The
courts below ignored this vital aspect observing that it is only an
explanation or introduction to the testimony of PW-2.
Page 11
12
18.
Be that as it may, an important circumstance relied
upon by the prosecution and accepted by the courts below is that
the offence had taken place inside the privacy of the hotel room
in which the accused and the deceased were staying together
and only the accused had the opportunity to commit the offence.
Prosecution mainly relied upon Section 106 of Indian Evidence
Act which says that when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon
him. Prosecution mainly relied upon the circumstance that the
occurrence was inside the hotel room and that death had
occurred in the privacy of the hotel room and that the appellants
have no plausible explanation for the death of Francesco Montis
and the absence of explanation or untrue explanation offered by
the accused point to their guilt.
19.
The principle underlying Section 106 of the Evidence
Act is that the burden to establish those facts, which are within
his personal knowledge is cast on the person concerned, and if
he fails to establish or explain those facts, an adverse inference
may be drawn against him.
Explaining the death of deceased
Francesco Montis, the appellants have stated that in the wee
hours of 4.2.2010 at 4.00 A.M., they had gone to see the famous
‘Subahe Banaras’ and returned back to the hotel room at 8.00
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13
A.M. and found the condition of Francesco Montis very serious
and immediately informed
PW-1 about the condition of their
friend and then with the assistance of the hotel staff, Francesco
Montis was taken to the hospital.
20.
Learned counsel for the respondent-State contended
that when the appellants have pleaded that they had gone out of
the hotel room in the wee hours of 4.2.2010 and having taken
plea of alibi, the burden is cast upon the accused to prove the
defence plea of alibi and the accused had not adduced any
evidence to show that they had gone out and visited ‘Subahe
Banaras’ in the early hours of 4.2.2010.
Learned counsel
submitted that the plea of alibi was rejected by the concurrent
findings of the courts below and the same
interfered with by this Court.
cannot lightly be
In support of his contention,
learned counsel for the respondent-State relied upon the
judgment of this Court in Gosu Jayarami Reddy and Anr. vs. State
of Andhra Pradesh, (2011) 11 SCC 766 wherein it was observed
as under:-
“52. We may at the threshold say that a finding of fact
concurrently recorded on the question of alibi is not
disturbed by this Court in an appeal by special leave. The
legal position in this regard is settled by the decision of
this Court in Thakur Prasad v. State of M.P. (AIR 1954 SC
30 at p. 31, para 2)
“2. The plea of alibi involves a question of fact
and both the courts below have concurrently
Page 13
14
found that fact against the appellant Thakur
Prasad. This Court, therefore, cannot, on an
appeal by special leave, go behind that
concurrent finding of fact.”
For
the
same
proposition,
reliance was also placed upon the
judgment of this Court in Munshi Prasad & Ors. vs.
State of
Bihar, (2002) 1 SCC 351.
21.
The defence plea offered by the appellants was that in
the wee hours of 4.2.2010, they had gone out and returned to
the hotel only to find out the serious condition of Francesco
Montis. The appellants being foreign nationals who visited India
as tourists, it would not have been possible for them to examine
any witness either from the hotel or from the place which they
are said to have visited as they were tourists in India.
In the
facts and circumstances of the case and in the light of the
statement-explanation offered by the accused that in the wee
hours of 4.2.2010 they had gone out to see ‘Subahe Banaras’, in
our considered view, the burden was for the prosecution to
establish that they remained inside the hotel room from 3.2.2010
till the next day morning 8.00 A.M. in the hotel.
22.
To invoke Section 106 of the Evidence Act, the main
point to be established by the prosecution is that the accused
persons were present in the hotel room at the relevant time. PW-
Page 14
15
1 Ram Singh-Hotel Manager stated that CCTV cameras are
installed in the boundaries, near the reception, in the kitchen, in
the restaurant and all three floors.
Since CCTV cameras were
installed in the prominent places, CCTV footage would have been
best evidence to prove whether the accused remained inside the
room and whether or not they have gone out. CCTV footage is a
strong piece of evidence which would have indicated whether the
accused remained inside the hotel and whether they were
responsible for the commission of a crime.
It would have also
shown whether or not the accused had gone out of the hotel.
CCTV footage being a crucial piece of evidence, it is for the
prosecution to have produced the best evidence which is missing.
Omission to produce CCTV footage, in our view, which is the best
evidence, raises serious doubts about the prosecution case.
23.
In his evidence, PW-1 has stated that he monitors the
affairs of the hotel on CCTV while sitting in reception.
further stated that he saw the CCTV footage at the
PW-1
relevant
time and on the fateful night no person was having ingress or
egress to the said room. PW-13-Dharambir Singh, investigating
officer, also stated that he saw the full video recording of the
fateful night on CCTV but he has not recorded the same in his
case diary as nothing substantial emerged from the same.
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16
24.
The trial court as well as the High Court ignored this
crucial aspect of non-production of CCTV footage. The trial court
as well as the High Court relied on the oral testimony of PW-1-
Ram Singh, hotel manager, that no one entered Room No. 459
between the relevant period on the intervening night of 3.2.2010
and 4.2.2010 which is based on the CCTV footage.
Courts below
accepted the version of PW-1 and PW-13 to hold that there was
no relevant material in the CCTV footage to suggest that a third
person entered the hotel room.
The trial court and the High
Court, in our view, erred in relying upon the oral evidence of PW-
1 and PW-13 who claim to have seen the CCTV footage and they
did not find anything which may be of relevance in the case.
25.
With the advancement of information technology,
scientific temper in the individual and at the institutional level is
to pervade the methods of investigation. With the increasing
impact of technology in everyday life and as a result, the
production of electronic evidence in cases has become relevant
to establish the guilt of the accused or the liability of the
defendant.
Electronic documents strictu sensu are admitted as
material evidence. With the amendment to the Indian Evidence
Act in 2000, Sections 65A and 65B were introduced into Chapter
V relating to documentary evidence. Section 65A provides that
Page 16
17
contents of electronic records may be admitted as evidence if the
criteria provided in Section 65B is complied with. The computer
generated electronic records in evidence are admissible at a trial
if proved in the manner specified by Section 65B of the Evidence
Act.
Sub-section (1) of Section 65B makes admissible as a
document, paper print out of electronic records stored in optical
or magnetic media produced by a computer, subject to the
fulfilment of the conditions specified in sub-section (2) of Section
65B. Secondary evidence of contents of document can also be
led under Section 65 of the Evidence Act.
PW-13 stated that he
saw the full video recording of the fateful night in the CCTV
camera, but he has not recorded the same in the case diary as
nothing substantial to be adduced as evidence was present in it.
26.
Production of scientific and electronic evidence in court
as contemplated under Section 65B of the Evidence Act is of
great help
to
the investigating agency and also
to
the
prosecution. The relevance of electronic evidence is also evident
in the light of Mohd. Ajmal Mohammad Amir Kasab vs. State of
Maharashtra, (2012) 9 SCC 1, wherein production of transcripts of
internet transactions helped the prosecution case a great deal in
proving the guilt of the accused. Similarly, in the case of State
(NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC
Page 17
18
600, the links between the slain terrorists and the masterminds
of the attack were established only through phone call transcripts
obtained from the mobile service providers.
27.
The trial court in its judgment held that non-collection
of CCTV footage, incomplete site plan, non-inclusion of all records
and sim details of mobile phones seized from the accused are
instances of faulty investigation and the same would not affect
the prosecution case. Non-production of CCTV footage, non-
collection of call records (details) and sim details of mobile
phones seized from the accused cannot be said to be mere
instances of faulty investigation but amount to withholding of
best evidence. It is not the case of the prosecution that CCTV
footage could not be lifted or a CD copy could not be made.
28.
As per Section 114 (g) of the Evidence Act, if a party in
possession of best evidence which will throw light in controversy
withholds it, the court can draw an adverse
inference against
him notwithstanding that the onus of proving does not lie on him.
The presumption under Section 114 (g) of the Evidence Act is
only a permissible inference and not a necessary inference.
Unlike presumption under Section 139 of Negotiable Instruments
Act, where the court has no option but to draw statutory
presumption under Section 114 of the Evidence Act.
Under
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19
Section 114 of the Evidence Act, the Court has the option; the
court may or may not raise presumption on the proof of certain
facts. Drawing of presumption under Section 114 (g) of Evidence
Act depends upon the nature of fact required to be proved and its
importance in the controversy, the usual mode of proving it; the
nature, quality and cogency of the evidence which has not been
produced and its accessibility to the party concerned,
all of
which have to be taken into account. It is only when all these
matters are duly considered that an adverse inference can be
drawn against the party.
29.
The High Court held that even though the appellants
alleged that the footage of CCTV is being concealed by the
prosecution for the reasons best known to the prosecution, the
accused did not invoke Section 233 Cr.P.C. and they did not make
any application for production of CCTV camera footage. The High
Court further observed that the accused were not able to
discredit the testimony of PW-1,
PW-12 and PW-13 qua there
being no relevant material in the CCTV camera footage.
Notwithstanding the fact that the burden lies upon the accused
to establish the defence plea of alibi
in the facts and
circumstances of the case, in our view, prosecution in possession
of the best evidence–CCTV footage
ought to have produced the
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same. In our considered view, it is a fit case to draw an adverse
inference against the prosecution under Section 114 (g) of the
Evidence Act that the prosecution withheld the same as it would
be unfavourable to them had it been produced.
30.
Yet another important piece of evidence which was not
produced by the prosecution is relevant to be noted.
On
4.2.2010, second appellant-Elisa Betta Bon informed PW-1 Ram
Singh, hotel Manager that the condition of Francesco Montis is
very serious. On hearing this, PW-1 immediately went to room
No. 459 where he saw the appellants were sitting and the
deceased was lying unconscious.
Thereafter, he immediately
came down to the reception and along with hotel staff went back
to the room and then they lifted Francesco Montis by wrapping
him in a blanket and took him to the hospital.
PW-6-Uma
Shankar had driven the car and Francesco Montis was taken to
the emergency ward. PW-1 and other witnesses have stated that
on examination of Francesco Montis, doctor declared him ‘dead’.
Prosecution has neither examined the doctor nor produced the
report that was prepared in the emergency ward of the hospital.
Likewise, the death intimation sent to the police was also not
produced.
The report prepared by the doctor who examined
Francesco Montis and declared him dead would have been yet
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another important piece of evidence which would have contained
earliest version of the accused and other relevant details.
31.
Motive for the crime suggested by the prosecution is
that physical intimacy and expression of love between the
appellants had caused depression in the mind of Francesco
Montis which led to the animosity which prompted the appellants
to commit the murder of deceased Francesco Montis.
In this
regard, reliance is placed upon statement of PW-3 Sunder
(Waiter) who stated that on 3.2.2010, tourists of Room No. 459
ordered two cups of tea in the restaurant. He served two cups of
tea to the occupants of Room No. 459 at the hotel restaurant and
he noticed A-1 and A-2 were sitting on one side of the table
hugging, kissing and cuddling each other whereas the deceased
who was sitting on the other side of the table looked gloomy and
depressed.
Reliance is also placed on evidence of PW-2 Ajit
Kumar (Waiter) who stated that on the night of 3.2.2010, when
PW-2 served vegetable fried rice, A-2 told him ‘not to disturb
them till tomorrow morning’.
32.
On behalf of the appellants, it was submitted that there
was nothing like a love triangle between them and the deceased
and they are foreigners and their social values are substantially
different from the Indians. It was submitted that merely because
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Francesco Montis
and
Tomaso Bruno (first appellant) were
accompanied by Elisa Betta Bon (second appellant) and all three
were staying in the room, it cannot be inferred that intimacy
developed
between
appellants
to the annoyance of the
deceased which created a motive in the long run for commission
of the alleged crime by the appellants.
It was submitted that
prosecution has failed to establish the motive propounded
against the accused persons which is an important circumstance
in a criminal case based on circumstantial evidence.
33.
There is, in our view, merit in the submission of the
learned senior counsel for the appellants.
Prosecution tried to
establish the case against the accused by making improvements
at various stages. The version of PW-3 that he saw A-1 and A-2
hugging, kissing and cuddling each other and that Francesco
Montis was sitting on the other side of the table appearing
depressed was not stated to the investigating officer PW-13 when
he
recorded
PW-3’s
statement
under
Section
161
Cr.P.C.
Likewise, version of PW-2-Ajit Kumar that on the night of
3.2.2010, the second accused asked him ‘not to disturb till
tomorrow morning’ was also not mentioned in his statement
recorded by the investigating officer under Section 161 Cr.P.C.
34.
Where the case is based on circumstantial evidence,
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proof of motive will be an important corroborative piece of
evidence. If motive is indicated and proved, it strengthens the
probability of the commission of the offence. In the case at hand,
evidence adduced by the prosecution suggesting motive is only
by way of improvement at the stage of trial which, in our view,
does not inspire confidence of the court.
35.
Yet
another
circumstance
relied
upon
by
the
prosecution is that the death is homicidal i.e. death is due to
asphyxia as a result of strangulation as stated in Exs. Ka-10 and
Ka-11 post-mortem reports. The first post-mortem on the body of
Francesco Montis was done on 5.2.2010 by PW-10-Dr. R.K. Singh.
Then in pursuance to the direction issued by the District
Magistrate as per the order of Chief Medical Officer, second post-
mortem was performed on 6.2.2010 by a panel of doctors and
the second post-mortem report is Ext.
Ka-11.
The first post-
mortem report discloses the following injuries:-
“Ante-Mortem Injury:
1.
On opening scalp, contusions 2 cm x 2 cm on the
mid of forehead 3 cm above root of nose.
2. On opening scalp, contusion 4 cm x 3 cm on left side
head 2 cm above left ear.
3. Abraded contusion (multiple) in area of 5 cm x 3 cm
on right side neck 5 cm outer of mid line 8 cm below
right ear.
4. Multiple abraded contusion an area of 5 cm x 4 cm
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on left side neck 6 cm outer to mid line & 7 cm
below left ear.
5. Lacerated wound 2 cm x 1 cm x muscle deep on
front of mid line of lower lip.
6. Abraded contusion 2 cm x 2 cm on outer aspect of
left knee joint.
Internal Examination:
Membranes
of
head
congested.
Sub
arachnoid
Haematoma present, Spinal cord not opened, Pleura
congested, Trachea contused, no abnormality detected in
larynx, both the lungs congested, Pericardium congested.
Chambers of heart full, peritoneum congested, 100 Gms
digested food was found in stomach, small intestine
contained digested food and gas and large intestine
contained faecal matter and gas, pancreas, spleen,
kidneys congested, bladder was empty. In the opinion of
the doctor, cause of death was asphyxia as result of
strangulation. However, viscera preserved for chemical
analysis to exclude poisoning.”
In the second post-mortem Ext. Ka-11, substantially there were
no changes except signs of decomposition. Second post-mortem
reiterates
that cause of death is “asphyxia as a result of
strangulation”.
According to the medical opinion, a hard blunt
substance appears to have been used to cause strangulation
leading to the death on account of asphyxia. However, no such
hard or blunt substance was found or seized from the room.
Doctors have not found any physical signs of internal injuries viz.
any extravasation of blood in the tissue or any laceration in the
underlying muscles. Considering postmortem reports Exts Ka-10
and
Ka-11 and the evidence of PWs 10 and 11, in our view,
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reasonable doubts arise as to the cause of death due to asphyxia
as a result of strangulation.
36.
Let us consider the injuries found on the body of
deceased Francesco Montis vis-à-vis symptoms of strangulation.
As per Modi’s Medical Jurisprudence And Toxicology 24 th Edition.
2011, page No.453 the symptoms of strangulation are stated as
under:-
“(b) Appearances due to Asphyxia.-The face is puffy
and cyanosed, and marked with petechiae. The eyes are
prominent and open. In some cases, they may be closed.
The conjunctivae are congested and the pupils are dilated.
Petechiae are seen in the eyelids and the conjunctivae.
The lips are blue. Bloody foam escapes from the mouth
and nostrils, and sometimes, pure blood issues from the
mouth, nose and ears, especially if great violence has
been used.
The tongue is often swollen, bruised,
protruding and dark in colour, showing patches of
extravasation and occasionally bitten by the teeth. There
may be evidence of bruising at the back of the neck. The
hands are usually clenched. The genital organs may be
congested and there may be discharge of urine, faeces
and seminal fluid.
(ii) Internal Appearance.- The neck and its structures
should be examined after removing the brain and the
chest organs, thus allowing blood to drain from the neck
to the blood vessels. There is extravasation of blood into
the sub-cuataneous tissues under the ligature mark or
finger marks, as well as in the adjacent muscles of the
neck, which are usually lacerated. Sometimes, there is
laceration of the sheath of the carotid arteries, as also
their internal coats with effusion of blood into their walls.
The cornua of the hyoid bone may be fractured also the
superior cornua of thyroid cartilage but fracture of the
cervical vertebrae is extremely rare. These should be
carefully dissected in situ as they are difficult to
distinguish from dissection artefacts in the neck.....”
37.
PW-10 Dr. R.K. Singh was subjected to lengthy cross-
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26
examination in the trial court which appears to have spread over
a number of days. When PW-10 was confronted with the injuries
found on the body of Francesco, he has stated that there was no
injury found in the Superior Cornua of Thyroid bone and no frothy
mucous was found in the larynx and trachea. By going through
the evidence of PW-10, it is seen that it was elicited from PW-10
that
the
prominent
symptoms
of
strangulation
were
conspicuously absent. It is apposite to refer to two questions and
answers elicited from PW-10 which are extracted hereunder:-
QUESTION: Is it correct that in the present case that none of the external
appearances in cases of death by strangulation viz. the petechiae in the eye,
the puffiness and swollen face and protruding out of tongue and petechiae
in tongue and bloody foam from the mouth and bulging out of eyes, swelling
in tongue, bruising and the base of the neck, nails and finger marks on the
neck and hands are clenched were present in this case?
ANSWER: As I said earlier all these signs depend on mode of death and it
varies from person to person and time of the post mortem, time of death and
how death was caused. I agree that all the above signs mentioned in this
question were not present in present case. It may be present in death by
asphyxia due to strangulation. But it is not necessary that all these signs
must be present in every case of asphyxial death by strangulation.
QUESTION: Is it correct that all the internal appearances in death by
strangulation were not present in this case viz. (i) subcutaneous tissues
and----------muscles are lacerated, (ii) extravasation of blood into
subcutaneous tissues, (iii) fracture of cornia of hyoid bone, (iv) non fracture
of superior cornia of hyoid bone, (v) non fracture or rupture in cartilage
rings (vi) non rupture or fracture of trachea (vii) edema in the brain, (viii)
petechial haemorrhage, (ix) petechiae in the lungs, (x) laceration in sheath of
carotid arteries (xi) compression in the arteries and bones (xii) larynx and
trachea containing frothy mucous were absent in present case?
ANSWER As per ecchymosis around injury 3-4, it was present at the time of
Post-Mortem, hence I have written injury No. 3 and 4 as ante mortem injuries.
Rest of findings depend on mode of death and timing of Post Mortem since
death and manner of causing injuries. The aforesaid symptoms suggested in
the question were not present in this case. It is not necessary that these
symptoms must be present in every case of death by strangulation.”
38.
Of course PW-10 has explained that by and large the
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above symptoms of strangulation as put up to him in the
questions would be present in cases of strangulation.
PW-10
further stated that those symptoms need not necessarily be so in
all cases of strangulation.
In our considered view, the
conspicuous absence of symptoms of strangulation coupled with
other
circumstances
militates
against
the
case
of
the
prosecution.
39.
It is a settled proposition of law recently reiterated in
the following cases viz. Dayal Singh And Ors. vs. State of
Uttaranchal (2012) 7 SCALE 165, Radhakrishna Nagesh vs. State
of Andhra Pradesh, (2013) 11 SCC 688, Umesh Singh vs. State of
Bihar (2013) 4 SCC 360 that there is possibility of some
variations in the exhibits, medical and ocular evidence and it
cannot be ruled out. But it is not that every minor variation or
inconsistency would tilt the balance of justice in favour of the
accused.
Where contradictions and variations are of a serious
nature, which apparently or impliedly are destructive of the
substantive case sought to be proved by the prosecution, they
may provide an advantage to the accused.
40.
The courts, normally would look at expert evidence
with a greater sense of acceptability, but it is equally true that
the courts are not absolutely guided by the report of the experts,
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28
especially if such reports are perfunctory and unsustainable. We
agree that the purpose of an expert opinion is primarily to assist
the court in arriving at a final conclusion but such report is not
a conclusive one. This Court is expected to analyse the report,
read it in conjunction with the other evidence on record and then
form its final opinion as to whether such report is worthy of
reliance or not. As discussed earlier, serious doubts arise about
the cause of death stated in the post-mortem reports.
41.
Even if we were to accept that the death was due to
strangulation which was caused by an object, the non-recovery of
alleged object weakens the prosecution case. Furthermore, it has
to be pointed out that it has come in evidence that the deceased
was a strongly built man and in the circumstances, it is rather
strange that no external marks were found on the body which
could demonstrate that there had been a struggle. The absence
of struggle and the corresponding external injuries is yet another
vital aspect which had gone unnoticed by the courts below.
42.
By and large, this Court will not interfere with the
concurrent findings recorded by the courts below.
But where the
evidence has not been properly appreciated, material aspects
have been ignored and the findings are perverse under Article
136 of the Constitution, this Court would certainly interfere with
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29
the findings of the courts below though concurrent.
In a case
based on circumstantial evidence, circumstances from which
inference of guilt is sought to be drawn should be fully proved
and such circumstances must be of conclusive nature pointing to
the guilt of accused.
circumstances.
There shall be no gap in such chain of
In the present case, the courts below have not
properly appreciated the evidence and the gap in the chain of
circumstances sought to be established by the prosecution.
The
courts below have ignored the importance of best evidence i.e.
CCTV camera in the instant case and also have not noticed the
absence of symptoms of strangulation in the medical reports.
Upon consideration of the facts and circumstances of the case,
we are of the view that the circumstances and the evidence
adduced by the prosecution do not form a complete chain
pointing to the guilt of the accused and the benefit of doubt is to
be given to the accused and the conviction of the appellants is
liable to be set aside.
43.
In the result, conviction of the appellants under Section
302/34 IPC is set aside and the appeal is allowed.
Appellants be
released forthwith.
............................J.
(Anil R. Dave)
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............................J.
(Kurian Joseph)
............................J.
(R. Banumathi)
New Delhi;
January 20, 2015
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